Copyright of Joint Works (in the 2nd Circuit)

As a general rule, the creator of a work is the party who first put a creative expression into a fixed or tangible medium. All copyright in the work is then held by this author.

Joint works are those owned by multiple authors. By its definition, multiple authors combine in the creation of the work or each author creates his/her work independently with the intention that it merge with the contributions of others as an inseparable or interdependent part of the whole. Under the 1976 Copyright Act, this definition of a joint work can be found at 17 U.S.C. Section 101.

The regulation of copyright is one of Congress' enumerated powers provided by Article 1 Section 8 Paragraph 8 of the Constitution. Any copyright action must be brought in federal court. Standards for what creates a joint work based on the definition given in the Copyright Act vary by federal circuit. In the Second Circuit, which covers the states of New York, Vermont and Connecticut, the most recent seminal case on the issue of the creation of a joint work is Childress v. Taylor.

Childress v. Taylor: Facts
Taylor, an actress, researched the life and times of the comedian Jackie "Moms" Mabley. With the opportunity of a limited production in a reputable summer stock theater and an extraordinarily tight timeframe (6 weeks), Taylor asked Childress to write a play using the information from her research and some of Taylor's own input. The play had a successful run but Taylor and Childress could not come to an agreement about the ownership of the work. After the run, Taylor presented Childress with a contract granting her co-ownership in the play. The relationship deteriorated and no contract was signed. Taylor then commissioned another playwright to write a new "Moms" Mabley play based upon Childress' original play and used review quotes and references to that summer stock play in the billing of the new version. Childress brought suit.

INTENT TO CREATE A JOINT WORK
Citing Committee reports surrounding the creation of the Copyright Act, Childress states:

"[A] work is "joint" if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as "inseparable or interdependent parts of a unitary whole." The touchstone here is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit.... House Report at 120; Senate Report at 103"

Drawing from this, the court found a stringent requirement for joint works, namely that the joint authors must have mutually intended to be co-authors at the time that the work was created.

WHAT TO LOOK TO FOR INTENT
The amount of the contribution is not enough. Even a significant contribution without a specific finding of mutual intent may not be enough. Some of the key indicia of ownership are:
Decision Making Authority: The ability to make creative decisions over what is included or excluded from the work. If final cut/approval over a work is retained by one party, the other will have a harder time proving join work statuts.
Billing or Credit: Though not decisive, billing or credit is very important in determining how the parties viewed themselves in relation to the work.
Written Agreements With Third Parties: If there are agreements with production companies or other third parties that list one party as the author of a work, this will be a strong indicia of authorship. This is especially true if the party signing the agreement did so without the consent of the other.
Additional Evidence: Any additional writings or facts that can contribute to a finding for or against the creation of a joint work.

INDEPENDENTLY COPYRIGHTABLE
Under Childress, in the Second Circuit, the contributions of all authors must be independently copyrightable. Meaning that, each author's individual contribution must possesses a modicum of originality and is in a fixed medium. The same tests that are applied in general for copyrightability would be applied to each individual contribution made. Thus, a contribution such as a piece of improv in a sketch comedy routine would likely not be enough to create a joint work as it would fail the copyrightability element.

If a joint work is established, the co-authors are co-owners of the copyright and have an equal and undivided ownership in the entire work. Each can do as they would like with the work, including license it to others on a non-exclusive basis, provided that the one party account to the other for the economic rights that they are due.